Lehman v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jessica Ann L.,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00098-PHX-SHD
ORDER
Claimant Jessica Ann L. (“Claimant”)1 seeks review of the Social Security
Administration Commissioner’s (“SSA” or “Commissioner”) final decision denying her
disability insurance benefits. For the reasons set forth below, the Administrative Law
Judge’s (“ALJ”) decision is vacated and remanded for an immediate award of benefits.
I. BACKGROUND
A. Factual Overview
Claimant was 39 years old on her alleged disability onset date of June 11, 2021.
(Administrative Record (“AR”) 206.) She has at least a high school education and past
relevant work as a bookkeeper prior to her alleged disability onset date, which is a skilled,
sedentary job. (AR 27.) Claimant filed an application for disability insurance benefits
under Title II on April 8, 2022. (AR 15.) The claim was initially denied on November 15,
2022, and upon reconsideration on March 11, 2023. (Id.) Claimant appeared via video at
a hearing on January 25, 2024. (Id.) The ALJ denied Claimant’s claim on February 27,
1 As a matter of practice, Claimant is referred to as such and, at most, by her first
name and last initial to protect her privacy.
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2024. (AR 28.) The Appeals Council denied Claimant’s request for review on November
19, 2024. (AR 1.) Claimant then appealed to this Court. (Doc. 1.)
B. The SSA’s Five-Step Evaluation Process
To qualify for Social Security Disability Insurance benefits, a claimant must show
that she “is under a disability.” 42 U.S.C. § 423(a)(1)(E). To be “under a disability,” the
claimant must be unable to engage in “substantial gainful activity” due to “any medically
determinable physical or mental impairment.” Id. § 423(d)(1). The impairment must be
of such severity that the claimant cannot do her previous work or any other substantial
gainful work within the national economy. Id. § 423(d)(2)(A). The SSA has created a
five-step sequential evaluation process for determining whether an individual is disabled.
See 20 C.F.R. § 404.1520(a)(1). The steps are followed in order, and each step is
potentially dispositive. See id. § 404.1520(a)(4).
At Step One, the ALJ determines whether the claimant is engaging in “substantial
gainful activity.” Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work activity
that is (1) “substantial,” i.e., doing “significant physical or mental activities”; and (2)
“gainful,” i.e., usually done “for pay or profit.” 20 C.F.R. § 416.972(a)–(b). If the claimant
is engaging in substantial gainful work activity, the ALJ will find the claimant is not
disabled. Id. § 404.1520(a)(4)(i).
At Step Two, the ALJ determines whether the claimant has “a severe medically
determinable physical or mental impairment” or severe “combination of impairments.” Id.
§ 404.1520(a)(4)(ii). To be “severe,” the claimant’s impairment must “significantly limit”
the claimant’s “physical or mental ability to do basic work activities.” Id. § 404.1520(c).
If the claimant does not have a severe impairment or combination of impairments, the ALJ
will find the claimant is not disabled. Id. § 404.1520(a)(4)(ii).
At Step Three, the ALJ determines whether the claimant’s impairment(s) “meets or
equals” an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id.
§ 404.1520(a)(4)(iii). If so, the ALJ will find the claimant is disabled, but if not, the ALJ
must assess the claimant’s “residual functional capacity” (“RFC”) before proceeding to
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Step Four. Id. §§ 404.1520(a)(4)(iii), (e). The claimant’s RFC is her ability perform
physical and mental work activities “despite [her] limitations,” based on all relevant
evidence in the case record. Id. § 404.1545(a)(1). To determine RFC, the ALJ must
consider all the claimant’s impairments, including those that are not “severe,” and any
related symptoms that “affect what [the claimant] can do in a work setting.” Id.
§§ 404.1545(a)(1)–(2).
At Step Four, the ALJ determines whether the claimant has the RFC to perform the
physical and mental demands of “[her] past relevant work.” Id. §§ 404.1520(a)(4)(iv), (e).
“Past relevant work” is work the claimant has “done within the past five years, that was
substantial gainful activity.” Id. § 404.1560(b)(1). If the claimant has the RFC to perform
her past relevant work, the ALJ will find the claimant is not disabled. Id.
§ 404.1520(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ will
proceed to Step Five in the sequential evaluation process.
At Step Five, the last in the sequence, the ALJ considers whether the claimant “can
make an adjustment to other work,” considering her RFC, age, education, and work
experience. Id. § 404.1520(a)(v). If so, the ALJ will find the claimant not disabled. Id. If
the claimant cannot make this adjustment, the ALJ will find the opposite. Id
C. The ALJ’s Application of the Factors
Here, at Step One, the ALJ concluded that Claimant had not engaged in substantial
gainful activity since the alleged disability onset date of June 11, 2021. (AR 17.)
At Step Two, the ALJ determined that Claimant had severe impairments of Cervical
degenerative disc disease with right sided radiculopathy, right carpal tunnel syndrome,
gastroparesis, and irritable bowel syndrome. (Id.)
At Step Three, the ALJ found that Claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in Appendix 1 to Subpart P of 20 C.F.R. § 404. (AR 20.) With respect to the
mental impairments of anxiety, depression, and cannabis use disorder, the ALJ analyzed
the four “paragraph B” criteria and found that Claimant had no limitations in
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(1) understanding, remembering or applying information, (2) interacting with others, (3)
concentrating, persisting or maintaining pace, or (4) adapting or managing oneself. (AR
18.)
The ALJ then found that Claimant had the following RFC:
[Claimant can] perform light work as defined in 20 CFR 404.1567(b) except
the claimant can frequently balance as defined by the Selected
Characteristics of Occupations, stoop, crouch, and kneel; occasionally crawl
and climb ramps or stairs; and never climb ladders, ropes, or scaffolds. The
claimant can occasionally reach overhead bilaterally. The claimant can
frequently handle, finger, and feel with the right upper extremity. The
claimant can have occasional exposure to dangerous moving machinery and
unprotected heights. She requires a work site within 50 yards of a bathroom,
but the need to use the restroom can be accommodated by normal breaks.
(AR 21.)
At Step Four, the ALJ found that Claimant was capable of performing past relevant
work as a bookkeeper. (AR 27.) At Step Five, based on the RFC formulation and the
testimony of the vocational expert (“VE”), the ALJ found that Claimant could perform
work as a bookkeeper as the work does not require the performance of work-related
activities that are precluded by Claimant’s RFC. (Id.) Accordingly, the ALJ concluded
that Claimant was not disabled as defined in the Social Security Act from the alleged onset
date through February 27, 2024. (AR 28.)
II. LEGAL STANDARD
This Court may not set aside a final denial of disability benefits unless the ALJ’s
decision is “based on legal error or not supported by substantial evidence in the record.”
Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Benton ex rel. Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). Substantial evidence refers to “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.
1988)). The Court, in its review, must consider the record in its entirety, “weighing both
the evidence that supports and the evidence that detracts from the [ALJ’s] conclusion.” Id.
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(quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2007)).
The ALJ—not this Court—is responsible for resolving ambiguities, resolving
conflicts in medical testimony, determining credibility, and drawing logical inferences
from the medical record. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)
(citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)); Gallant v. Heckler, 753
F.2d 1450, 1453 (9th Cir. 1984). Therefore, when the evidence of record could result in
more than one rational interpretation, “the ALJ’s decision should be upheld.” Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ is subject to more than
one rational interpretation, [the Court] must defer to the ALJ’s conclusion.”). Further, this
Court may only review the reasons the ALJ provides in the disability determination; it
“may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at
1010. Finally, only those issues raised by the party challenging the decision are reviewed.
See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
III. DISCUSSION
Claimant argues on appeal that the ALJ committed materially harmful error by
rejecting Claimant’s symptom testimony in the absence of specific, clear, and convincing
reasons supported by substantial evidence in the record. (Doc. 11 at 1.) If the ALJ finds
that a claimant “presented objective medical evidence of an underlying impairment which
could reasonably be expected to produce the pain or other symptoms alleged,” and that
there is “no evidence of malingering,” the ALJ may “reject [her] testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons for doing
so.” Revels, 874 F.3d at 655 (citation omitted). “This is not an easy requirement to meet:
The clear and convincing standard is the most demanding required in Social Security
cases.” Id. (citation omitted). “If the ALJ fails to provide specific, clear, and convincing
reasons for discounting the claimant’s subjective symptom testimony, then the ALJ’s
determination is not supported by substantial evidence.” Ferguson v. O’Malley, 95 F.4th
1194, 1199 (9th Cir. 2024). An ALJ, however, is “not required to believe every allegation
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of disabling pain.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (quotation marks
omitted). “The standard isn’t whether [the] court is convinced, but instead whether the
ALJ’s rationale is clear enough that it has the power to convince.” Id.
In this case, Claimant challenges the ALJ’s rejection of her symptom testimony
concerning both her gastrointestinal conditions—including her gastroparesis and irritable
bowel syndrome—and her cervical degenerative disc disease with right-sided
radiculopathy. As explained below, the ALJ erred in discounting certain gastrointestinal
symptom testimony. Furthermore, the credit-as-true rule applies, warranting a remand for
an immediate award of benefits. Accordingly, it is unnecessary to analyze Claimant’s
arguments concerning the ALJ’s rejection of her symptom testimony about her cervical
degenerative disc symptoms.
A. Gastrointestinal Symptom Testimony
Claimant testified extensively at the hearing about the challenges she faces due to
her gastrointestinal conditions. She testified that she suffers from abdominal pain,
vomiting, and nausea on a daily basis and that there is “not one day that goes by that [she
does] not feel sick.” (AR 49.) The abdominal pain lasts for hours, is unpredictable, and
feels like “really bad cramps . . . that won’t go away,” and she described the pain as akin
to childbirth. (AR 49–50.) Claimant testified that she tries to alleviate the pain by going
to the bathroom “as much as possible” and “basically sitting on the toilet.” (AR 50.) She
indicated that she goes to the bathroom on a typical day between 6 and 10 times, and up to
15 times on a bad day, and further testified that she might spend 15 minutes in the bathroom
during each trip to try to make sure she has emptied her bowels to avoid having to run back
to the bathroom again. (AR 50–51).
Claimant further described her flareups, which occur usually once a month, as
forcing her to spend most of her time “in bed from one to two weeks at a time” and
“vomiting all the time when this happens.” (AR 41.) She explained that she does not know
why her flareups come to an end and has “to let [a flareup] take its course until it’s over”;
she does not really eat during flareups and just takes “tiny sips of nutrition if [she] can”—
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even if she might throw it up—to keep herself “from going to the hospital all the time.”
(AR 45–46.) When she was in her prior employment as a bookkeeper, she was “always
out of work all the time” due to her stomach issues. (AR 45.)
She indicated that she has tried numerous treatments, and sometimes medications
help and sometimes they do not. (AR 41.) She takes Gabapentin to help alleviate her
stomach pain, (AR 42), promethazine for her nausea, (id.), and medical marijuana to help
with her vomiting and nausea from her gastroparesis, and during her flare ups, (AR 44).
The ALJ included some limitations in the RFC based on Claimant’s stomach
issues—including limiting her to “light work with additional postural limitations” and “to
account for any attacks or flares of symptoms . . . a bathroom within 50 yards of her work
site,” but dismissed the bulk of her symptom testimony. (AR 24–25.) Claimant presents
several arguments for why the ALJ erred in rejecting her testimony.
She first takes issue with the ALJ’s discussion of her medical marijuana use at Step
3 of the sequential analysis when the ALJ discussed whether Claimant met the paragraph
B criteria. Specifically, she argues that the ALJ’s “belief that [Claimant] inhibited her own
treatment with marijuana is incorrect” and “does not serve as a specific, clear, and
convincing reason to reject [the] symptom testimony.” (Doc. 11 at 10–11.) This argument
lacks merit. The ALJ addressed Claimant’s marijuana use when evaluating her cannabis
use disorder’s impact on her ability to perform mental work activities at Step 3. (AR 19.)
The ALJ did not use Claimant’s marijuana use as a basis for rejecting her symptom
testimony. Indeed, in the lengthy portion of the decision setting forth the reasons for
discounting Claimant’s stomach-related symptom testimony, the ALJ did not refer to
Claimant’s marijuana use at all. (AR 24–25.) Thus, the factual premise of Claimant’s
argument—that the ALJ relied on her marijuana use to discount her symptom testimony—
is wrong, and her argument that the ALJ committed error fails.
Claimant’s next argument—that the ALJ erred by “split[ting] the discussion of
[Claimant’s] testimony into two sections, with one discussion of [her] testimony about her
gastroparesis symptoms, and the other about [her] cervical spine,” (Doc. 11 at 11–12)—
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also fails. Claimant cites no authority for the proposition that an ALJ must mash up the
analysis of various subjects of symptom testimony in a disorganized fashion, nor does any
such precedent exist. For good measure, Claimant throws in a conclusory argument that
the ALJ cherry-picked normal findings within the record to support the discounting of the
symptom testimony, but Claimant fails to make this argument with any specificity. (Id. at
12.) I therefore decline to consider this argument. See Carmickle v. Comm’r, Soc. Sec.
Admin, 533 F.3 1155, 1161 n.2 (9th Cir. 2008) (declining to address a finding by an ALJ
because the claimant “failed to argue this issue with any specificity in his briefing” (citation
omitted)); cf. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(“Our circuit has repeatedly admonished that we cannot ‘manufacture arguments for an
appellant’ and therefore we will not consider any claims that were not actually argued in
appellant’s opening brief.” (quotation marks omitted)).
Claimant then challenges the ALJ’s actual reasons for discounting Claimant’s
gastroparesis symptom testimony. The ALJ disregarded her symptom testimony
concerning the severity of her flareups based on her subjective report that her weight
fluctuates up and down 10 pounds during flareups, (AR 1177), which the ALJ found
unsupported based on (a) an evaluation of medical records showing that her weight
fluctuated minimally over a period of more than a year, (see AR 24–25 (citing AR 1036
(114 lbs in June 2022), 1129 (116 lbs in January 2023), 1144 (110 lbs in May 2023), 1140
(108 lbs in October 2023)); (b) a gastroenterologist expert who noted that her weight was
stable, (AR 25 (citing AR 1182 (noting “stable weights in the last 6months [sic]”), 1190
(same)); and (c) Claimant’s own statements that her weight was stable, she was able to
avoid hospitalization in the emergency room, and she denied unintentional weight loss,
(AR 25 (citing AR 363 (“able to stay out of ED and maintain her weight”), 558 (“weight
has been stable since [Botox injection] over the past 3 weeks”), 1097 (“no . . . unintentional
weight loss”), 1199 (“Denies . . . weight loss”)). The ALJ provided specific, clear and
convincing reasons for discounting Claimant’s testimony of the severity of her flareups,
and Claimant’s suggestion to the contrary fails.
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The ALJ next found that Claimant’s testimony about the frequency and intensity of
her symptoms of nausea, vomiting, and abdominal pain was contradicted by the medical
record evidence, noting that (a) her testimony suggesting near constant abdominal pain and
nausea was belied by examinations showing that her abdomen was not tender and that her
medical providers noted her appearance as comfortable and not in distress, (AR 25 (citing
AR 363, 373, 375, 1132, 1141, 1144, 1182, 1195–96, 1215)); (b) that imaging of her
esophagus showed no corrosive changes that would be expected if her testimony that she
vomited 6 to 15 times per day were true, her stomach imaging was normal, and although
she suffered moderate diverticulosis, her mucosa appeared normal, as was a biopsy, (AR
25 (citing AR 301, 386, 393, 1193, 1196)); and (c) one doctor noted that her “delay in
gastric emptying seems disproportionate to the severity of [her] symptoms,” (AR 25 (citing
AR 769)); and (d) her appearance at medical appointments as alert and oriented belied her
reports of waking up to vomit regularly or at least suggested that such incidents did not
negatively impact her, (AR 25 (citing AR 549, 1136)).
Like the ALJ’s explanations for discounting Claimant’s flareup testimony, the ALJ
provided specific, clear and convincing reasons for discounting Claimant’s testimony
about the frequency and intensity of her vomiting, abdominal pain, and nausea. Claimant
takes issue with the ALJ’s quotation of Dr. Wei’s comment that her symptoms were
disproportionate to her rate of gastric emptying, arguing that this one comment, in isolation
does not contradict her testimony. But as noted above, the ALJ provided multiple
explanations why the medical records were inconsistent with her testimony. See, e.g.,
Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“When objective medical evidence
in the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed
weigh it as undercutting such testimony. We have upheld ALJ decisions that do just that in
many cases.”). And Claimant’s argument that the ALJ improperly played doctor fails
because the ALJ referred to medical findings inconsistent with Claimant’s testimony. See
Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022) (“ALJs are, at some level, capable of
independently reviewing and forming conclusions about medical evidence . . . .”).
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Finally, the ALJ rejected Claimant’s testimony about the severity of her irritable
bowel syndrome symptoms, explaining that she “had soft stool over the years, but denied
runny diarrhea,” (AR 25 (citing AR 1195, 1198)), and reported “traveling by flying, which
further suggest[s] fewer bathroom trips and less abdominal discomfort than alleged,” (AR
25 (citing AR 1028)). Claimant argues that these reasons for discounting her symptom
testimony are not specific, clear, and convincing because neither the distinction between
“soft stool” and “runny watery diarrhea,” nor Claimant’s travel by air for medical treatment
have any bearing on Claimant’s testimony that she spends significant amounts of time in
the bathroom on normal days, and even more time in the bathroom when her condition is
aggravated. (Doc. 11 at 17–19.) The Commissioner does not defend the ALJ’s reliance
on Claimant’s different descriptions of her bowel movements, but does contend that the
ALJ properly considered Claimant’s travel from Arizona to California to reject her
symptom testimony because such travel would involve “limited or no access to a
bathroom.” (Doc. 13 at 10–11.)
The Commissioner’s argument is unpersuasive, and the ALJ’s reasons for
discounting Claimant’s symptom testimony concerning her irritable bowel syndrome are
not specific, clear, or convincing. First, whether Claimant’s bowel movements are
characterized as “soft” or “runny watery diarrhea” has no probative value as to her
testimony that she regularly visits the bathroom 6 to 10 times a day—and up to 15 times
when her condition is aggravated—and spends 15 minutes in the bathroom per visit.
Likewise, her travel by air is irrelevant. Contrary to the Commissioner’s assertion, airports
and airplanes have restrooms available for use by passengers, and while they may not be
accessible at all times, the ALJ and Commissioner’s suggestion that Claimant should be
unable to travel for medical treatment due to her symptoms is a stretch, to put it mildly.
Because the ALJ’s decision to disregard Claimant’s testimony about her irritable bowel
syndrome symptoms is not supported by substantial evidence, reversal is warranted.
B. Remand for an Award of Benefits
Ordinarily, if the Court reverses an ALJ, the Court remands for further proceedings.
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Garrison, 759 F.3d at 1019. Claimant requests that the Court apply the “credit-as-true
rule,” however, (Doc. 11 at 22–23; Doc. 14 at 7–8), which would result in the immediate
award of benefits, as opposed to remand for further proceedings. Garrison, 759 F.3d at
1019. The credit-as-true rule only applies if (1) the ALJ “failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion,”
Washington v. Kijakazi, 72 F.4th 1029, 1041 (9th Cir. 2023) (citations omitted); (2) the
“record has been fully developed,” such that there are no “outstanding issues that must be
resolved before a determination of disability can be made” and “further proceedings would
not be useful,” id. (citations omitted); and (3) “if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on remand,”
Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (citation omitted). The Ninth Circuit
has described this result as appropriate “only in rare circumstances.” Brown-Hunter v.
Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quotation marks omitted). “The decision
whether to remand a case for additional evidence, or simply to award benefits, is within
the discretion of the court.” Revels, 874 F.3d at 668 (cleaned up).
This is a rare case warranting application of the credit-as-true rule. Here, the ALJ
took testimony from Claimant concerning the significant amount of time she would need
to spend in the bathroom every day due to her gastrointestinal conditions, (AR 49–51),
failed to provide specific, clear, and convincing reasons to disregard that testimony, (AR
25), and obtained testimony from the vocational expert indicating that if Claimant’s
symptom testimony were taken as true—i.e., if she had to take breaks for “one or two
hours” each day or had to visit the bathroom frequently such that she would “be off task
20 percent of every eight-hour workday”—she would not be able to find work, (AR 53–
54). The record has been fully developed, there are no outstanding issues to be resolved,
and, taking Claimant’s symptom testimony as true, the ALJ would have to award benefits.
Accordingly, remanding for further proceedings would serve no useful purpose. See, e.g.,
Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007) (remanding for award of
benefits where ALJ improperly rejected symptom testimony and vocational expert testified
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that the claimant’s pain and physical limitations would eliminate any potential
employment); Yang v. Astrue, 281 Fed. Appx. 673, 674 (9th Cir. 2008) (rejecting
Commissioner’s argument for remand because the “VE’s unambiguous conclusion that
[the claimant’s] own testimony demonstrate[d] an inability to perform jobs in the national
economy” established “that the improperly rejected evidence, when credited, show[ed] that
[the claimant] was disabled”).
Accordingly,
IT IS ORDERED that the decision of the ALJ is vacated and remanded for an
immediate award of benefits.
IT IS FURTHER ORDERED directing the Clerk of Court to enter final judgment
consistent with this Order and close this case.
Dated this 31st day of March, 2026.
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